SHOULD SOFTWARE REPLACE LAWYERS?

By P. Mohan Chandran

(As Published in A MONTHLY NEWSLETTER BY SWARNA BHARATHA)

THE ‘KALEIDOSCOPIC’ FACE OF TECHNOLOGY

Advances in legal technology has revolutionized today’s legal landscape, contributing to the evolution of the legal profession. Legal technology has impacted every dimension of the legal field – from law firm and corporate practice to courtroom operation and document management.Technology is also being used as an important legal marketing tool. Several companies are leveraging technology as a key strategic asset. Electronic legal research prevails as the most popular method, with Westlaw and Lexis-Nexis among the most widely used legal research databases. Built-in monitors and equipment facilitate the use of trial presentation software and other technology in the courtroom. So,today, the big question facing us is: ‘will software replace lawyers?’

TECHNOLOGY CREATES EMPLOYMENT, NOT HUMAN DISPLACEMENT

The question is not whether software ‘should’ or ‘can’ replace lawyers, but one of delivering efficiency and ultimate client satisfaction. It’s important to distinguish ‘task automation’ from ‘job automation’; automation cuts ‘tasks’, but not ‘jobs’. Technology is always meant to aid employment generation, and supplement and complement human skills, but never to replace it. With software, routine tasks will become more efficient and lawyers will move up the value chain to solve millions of more cases. In his book ‘Tomorrow's Lawyers,’ Richard Susskind, a leading legal futurist professor, predicts the creation of eight new legal roles, such as ‘legal knowledge engineer’, ‘legal technologist’, ‘project manager’, ‘risk manager’, ‘process analyst’, etc., with the blend of software and law. When menial, mid-level task work is eliminated, employees have more time for relevant issues, and it increases the demand for jobs that require humans with critical thinking and abstract reasoning to control such machines. Artificial Intelligence (AI) and increasing automation may displace lawyers from a few jobs, but such jobs will be replaced by other jobs, many of which we cannot imagine now.

In Summer 2015, David H. Autor, an M.I.T. Labor Economist, in the Journal of Economic Perspectives (Vol. 29, No. 3) explained that many jobs still exist, despite emerging technologies, since automation just as frequently complements as replaces labor in the workplace. Autor predicted that while AI technologies would continue to replace repetitive jobs in the future, they would also increase the number of jobs that necessitate human skills such as problem-solving, flexibility and creativity. A study by McKinsey & Company in November 2015 revealed that embedding technology in the workplace is more likely to transform, rather than eliminate, jobs. The study found that not more than 5% of jobs can be completely automated based on existing technologies within the next three to five years. In October 2016, a similar study by James Bessen, a researcher at the Boston University School of Law, revealed the existence of a positive relationship between the degree of automation in a particular job category and employment growth.

NOT ALL SOFTWARE ‘CAN’ / ‘SHOULD’ REPLACE LAWYERS

While it’s possible, to an extent, for software to replace repetitive tasks of lawyers, it’s not possible for software to completely replace lawyers, especially in tasks that involve problem-solving, human creativity, empathy or emotional bonding with clients.A new study – “Can Robots Be Lawyers?”– by Dana Remus, a Professor at the University of North Carolina School of Law, and Frank S. Levy, an M.I.T. Labor Economist, published in November 2016 on the Social Science Research Network (SSRN), specifically explored those aspects of a lawyer’s job that could be automated. They also examined the work that lawyers performed in broad general categories and analyzed how much of each category might be displaced by existing AI and automation technologies. According to the results of the study, even the most cutting-edge AI technology would currently be able to make only minimal invasion into law. The researchers observed that many of the tasks that lawyers perform fall within the parameters of such ‘human behavior’ that are quite difficult to codify. For instance, a machine would still find it extremely difficult to negotiate with a client or interact with a court. The researchers felt that it will often be impossible to anticipate all possible contingencies of a task that are less structured. Moreover, they noted that current e-discovery software programs still require significant involvement by human lawyers. Upon analyzing the actual legal work practices, the researchers estimated that only about 13% of all legal work might ultimately come under automation in the next five years. AI technologies are more likely to transform the nature of work, rather than end it. According to the researchers, even where automation had made significant progress, its impact has been far less.Technology may replace a chunk of the work that lawyers do, but it ‘cannot’ replace lawyers, per se.

Software is not going to put lawyers out of business, but it’s only going to change the way law is practiced. Software cannot replace the judgment and creativity of lawyers, nor the intelligence required for coming up with effective strategies, adapting the law, or persuading others. Identifying the actual issue from a gamut of facts, knowing what law to apply, how to apply it, when to apply it, sifting the relevant facts of a case, figuring out what needs to be done and the best way to do it, coming up with the right questions, and getting the most accurate data – all these require human skills that is currently difficult for algorithms to implement. These are the high-level functions that cannot be easily replaced by software. Automation technologies has its limits and one of the biggest challenges for AI designers is that there are many human activities that cannot be formally described. It’s precisely such aspects of human behavior that computers cannot be programmed to simulate. Until computers have the ability to grasp nuances the same way as that of the brain, there’s no way human jobs can be replaced. Counseling, court hearings, depositions, litigation, and other more complex work performed by lawyers are too mercurial to automate.

Most of what is required is based on the possibility of unlimited outcomes. It would be impossible to write a program that could account for all the probable contingencies. This quote by Bob Craig, Chief Information Officer of BakerHostetler, the law firm that uses IBM Watson’s Ross, puts an end to the debate of software replacing lawyers: “ROSS is not a way to replace our attorneys – it is a supplemental tool to help them move faster, learn faster, and continually improve. Human lawyers sit at the center of the systems we build.”

THE CASE ‘AGAINST SOFTWARE’ / ‘FOR HUMANS’ IN LAW

The replacement of humans with machines is not imminent and probably will not affect 100% of the profession. Clients greatly value human inputs such as empathy, real understanding and insights into their problems. The client-attorney relationship is an area that will need a human being, since machines cannot emotionally connect with clients. At the end of a trial, clients remember the assistance and counseling the lawyers provide as it is irreplaceable.

Machines will never be able to perform the tasks performed by lawmakers, judges, and lawyers. Even the state-of-the-art machines cannot replicate certain skills – earning client’s trust, negotiating a deal, or assessing the umpteen aspects of business that go beyond data. A machine cannot figure out the best documents to be used as deposition exhibits, nor can it tell you if something would be boring or interesting to listen. Moreover, machines cannot speak in the court for the foreseeable future. Software cannot analyze documents or learn the same way that a human can.Most people simply do not trust software to complete the tasks that humans do. Humans are still required to input the information that powers these solutions that machines provide. Moreover, it’s a basic human right for a person to have their fate decided by a human being vis-a-vis a machine.

With growing technology, the amount of legal work is also growing. In addition, the legal complexity from new technologies – 3D printing, AI, nanotechnology – also ensures that lawyers aren’t redundant. With the world’s ongoing technological acceleration, lawyers who specialize in areas connected to that acceleration may continue to prosper. There will always be work for people who can synthesize information, think critically, and be flexible.Technology cannot/shouldn’t replace lawyers because law is different from other knowledge work. An understanding of law requires deep philosophical and moral reasoning skills that machines can never replicate. It is not a profession that can be easily replaced by technology unlike medicine or finance. Lawyers will continue to offer specialized services in niche areas, appear in court, or provide services where human relationships are central to their quality. Hence, lawyers are virtually irreplaceable by software.

(c) 2017. P. Mohan Chandran

MSS Law College (Hyderabad)